dismissed EB-3 Case: Software Engineering

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PUBLIC COPY 
U.S. Department of Ilomeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Section 203(b) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: 
 The Director, Nebraska Service Center denied the employment-based immigrant visa 
petition. The petition is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner is a sales promotional analysis and research business. It seeks to employ the beneficiary 
permanently in the United States as a software engineer. As required by statute, a Form ETA 750, 
Application for Alien Employment Certification, approved by the Department of Labor, accompanies the 
petition. The director determined that the petitioner had not established that the beneficiary met the 
requirements of the labor certification as of the priority date, December 26,2002. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of enor in law or 
fact. The procedural history in thls case is documented by the record and incorporated into this decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's May 6, 2004 denial, the single issue in ths case is whether or not the 
beneficiary meets the requirements of the labor certification as of the priority date. 
Section 203(b)(3)(A)(i) of the Act, 8 U.S.C. tj 1153(b)(3)(A)(i), provides for the granting of preference 
classification to qualified immigrants who are capable, at the time of petitioning for classification under 
this paragraph, of performing skilled labor (requiring at least two years training or experience), not of a 
temporary or seasonal nature, for which qualified workers are not available in the United States. 
Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 1153(b)(3)(A)(ii), 
provides for the granting of preference classification to qualified immigrants who hold baccalaureate degrees 
and are members of the professions. 
The regulation at 8 C.F.R. tj 204.5(1)(3) states, in pertinent part: 
(ii) Other documentation - (A) General. Any requirements of training or experience for 
skilled workers, professionals, or other workers must be supported by letters from trainers 
or employers giving the name, address, and title of the trainer or employer, and a 
description of the training received or the experience of the alien. 
(B) Skilled workers. 
 If the petition is for a skilled worker, the petition must be 
accompanied by evidence that the alien meets the educational, training or experience, and 
any other requirements of the individual labor certification, meets the requirements for 
Schedule A designation, or meets the requirements for the Labor Market Information 
Pilot Program occupational designation. The minimum requirements for this 
classification are at least two years of training or experience. 
(C) Professionals. If the petition is for a professional, the petition must be accompanied 
by evidence that the alien holds a United States baccalaureate degree or a foreign 
equivalent degree and by evidence that the alien is a member of the professions. 
Evidence of a baccalaureate degree shall be in the form of an official college or 
university record showing the date the baccalaureate degree was awarded and the area of 
concentration of study. To show that the alien is a member of the professions, the 
petitioner must submit evidence showing that the minimum of a baccalaureate degree is 
required for entry into the occupation. 
On appeal, counsel asserts: 
etter demonstrates that at worst the employer's language is ambiguous. 
Accordingly, the intent of the employer should be considered in interpreting this 
application. 
 Clearly the employer considered the beneficiary qualified for the job 
because he already occupied it. Therefore, the employer, in indicating that it would 
accept the foreign equivalent of a U.S. bachelor's degree, could not have meant to limit 
consideration solely to a person with a single degree which is the equivalent of a foreign 
degree, since the beneficiary, himself, did not have such a single degree. Likewise, the 
Department of Labor DOL could not have intended such a result, since it certified the 
position, despite (ducational qualifications being fully disclosed in Part 
B of the Application for Alien Employment Certification (ETA 750). Of course, had the 
Department found that the required education; this would have 
required denial of the utter of Parking Company of America, Inc., 95- 
Federal Circuit Court precedent cases' (discussed later in greater detail in this decision), which are 
binding on this office, have repeatedly upheld our authority to make a de novo determination of whether 
the beneficiary is in fact qualified to fill the certified job offer. The issuance of a labor certification does 
not, therefore, bind U.S. Citizenship & Immigration Services ("CIS") to accept the employer's, or even 
the Department of Labor's definition of the amount and kind of experience that should be considered the 
equivalent of a college degree. In any event, the same Federal Circuit precedent cases, in conjunction 
with the reasoning set forth in relevant decisions by the Board of Alien Labor Certification Appeals 
(BALCA), support our interpretation of the phrase "B.S. or foreign equivalent" as requiring either (i) a 
U.S. baccalaureate degree or (ii) a foreign equivalent degree, where such foreign equivalent degree is not 
a combination of lesser degrees and experience. 
To be eligble for approval, a beneficiary must have the education and experience specified on the labor 
certification as of the petition's filing date. The filing date of the petition is the initial receipt in the 
Department of Labor's (DOL'S) employment service system. Matter of Wing's Tea House, 16 I&N 158 
(Act. Reg. Cornm. 1977). In this case, that date is December 26.2002. 
As noted above, the ETA 750 in ths matter is certified by DOL. Thus, at the outset, it is usehl to discuss 
DOL's role in ths process. Section 212(a)(5)(A)(i) provides: 
' See Castaneda-Gonzalez v. INS, 564 F.2d 417, 429 (D.C. Cir. 1977), Madany v. Smith, 696 F.2d. 1008, 
1012-1013 (D.C. Cir. 1983), and K.K.K. Iwine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). 
Page 4 
In general.-Any alien who seeks to enter the United States for the purpose of performing 
slulled or unslulled labor is inadmissible, unless the Secretary of Labor has determined and 
certified to the Secretary of State and the Attorney General that- 
(I) there are not sufficient workers who are able, willing, qualified (or equally 
qualified in the case of an alien described in clause (ii)) and available at the time of 
application for a visa and admission to the United States and at the place where the 
alien is to perform such skilled or unskilled labor, and 
(11) the employment of such alien will not adversely affect the wages and 
worlung conditions of workers in the United States similarly employed. 
According to the regulation at 20 C.F.R. 8 656.20(c), as in effect at the time of filing2 an employer applylng 
for a labor certification must "clearly show" that: 
(1) The employer has enough hnds available to pay the wage or salary offered the alien; 
(2) The wage offered equals or exceeds the prevailing wage determined pursuant to 
656.40, and the wage the employer will pay to the alien when the alien begins work will 
equal or exceed the prevailing wage which is applicable at the time the alien begins work; 
(3) The wage offered is not based on commissions, bonuses or other incentives, unless the 
employer guarantees a wage paid on a weekly, bi-weekly, or monthly basis; 
(4) The employer will be able to place the alien on the payroll on or before the date of the 
alien's proposed entrance into the United States; 
(5) The job opportunity does not involve unlawful discrimination by race, creed, color, 
national orign, age, sex, religion, handicap, or citizenship; 
(6) The employer's job opportunity is not: 
(i) Vacant because the former occupant is on strike or is being locked out in the 
course of a labor dispute involving a work stoppage; or 
(ii) At issue in a labor dispute invoIving a work stoppage; 
(7) The employer's job opportunity's terms, conditions and occupational environment are 
not contrary to Federal, State or local law; and 
(8) The job opportunity has been and is clearly open to any qualified U.S. worker 
Recently the Department of Labor has promulgated new regulations regarding the labor certification 
process. These new regulations only apply to applications filed on or after the effective date of the 
regulations, March 28, 2005. Applications filed before March 28, 2005, such as the one before us, are to 
be processed and governed by the regulations quoted in this decision. 69 Fed. Reg. 77326-01 (Dec. 27, 
2004). 
(9) The conditions of employment listed in paragraphs (c) (1) through (8) of ths section 
shall be sworn (or affirmed) to, under penalty of perjury pursuant to 28 U.S.C. 1746, on the 
Application for Alien Employment Certification form. 
The regulation at 20 C.F.R. 9 656.21(a) requires the ETA 750 to include: 
(1) A statement of the qualifications of the alien, signed by the alien; [and] 
(2) A description of the job offer for the alien employment, including the items required by 
paragraph (b) of this section. 
Finally, the regulation at 20 C.F.R. $656.24(b) provides that the DOL Certifylng Officer shall make a 
determination to grant the labor certification based on whether or not: 
(1) The employer has met the requirements of this part. However, where the Certifying 
Officer determines that the employer has committed harmless error, the Certifying Officer 
nevertheless may grant the labor certification, Provided, That the labor market has been 
tested sufficiently to warrant a finding of unavailability of and lack of adverse effect on U.S. 
workers. Where the Certifylng Officer makes such a determination, the Certifying Officer 
shall document it in the application file. 
(2) There is in the United States a worker who is able, willing, qualified and available for 
and at the place of the job opportunity according to the following standards: 
(i) The Cerhfying Officer, in judgng whether a U.S. worker is willing to take 
the job opportunity, shall look at the documented results of the employer's and 
the Local (and State) Employment Service office's recruitment efforts, and shall 
determine if there are other appropriate sources of workers where the employer 
should have recruited or might be able to recruit U.S. workers. 
(ii) The Certifying Officer shall consider a U.S. worker able and qualified for 
the job opportunity if the worker, by education, training, experience, or a 
combination thereof, is able to perform in the normally accepted manner the 
duties involved in the occupation as customarily performed by other U.S. 
workers similarly employed, except that, if the application involves a job 
opportunity as a college or university teacher, or for an alien whom the 
Certifying Officer determines to be currently of exceptional ability in the 
performing arts, the U.S. worker must be at least as qualified as the alien. 
(iii) In determining whether U.S. workers are available, the Certifying Officer 
shall consider as many sources as are appropriate and shall look to the 
nationwide system of public employment offices (the "Employment Service") 
as one source. 
(iv) In determining whether a U.S. worker is available at the place of the job 
opportunity, the Certifying Officer shall consider U.S. workers living or 
worlung in the area of intended employment, and may also consider U.S. 
workers who are willing to move from elsewhere to take the job at their own 
expenses, or, if the prevailing practice among employers employing workers in 
the occupation in the area of intended employment is to pay such relocation 
expenses, at the employer's expense. 
(3) The employment of the alien will have an adverse effect upon the wages and worlung 
conditions of U.S. workers similarly employed. In malung this determination the Certifying 
Officer shall consider such things as labor market information, the special circumstances of 
the industry, organization, andlor occupation, the prevailing wage in the area of intended 
employment, and the prevailing worlung conditions, such as hours, in the occupation. 
It is significant that none of the above inquiries assigned to DOL involve a determination as to whether or not 
the alien is qualified for the job offered. This fact has not gone unnoticed by the Federal Circuit Courts of 
Appeals: 
There is no doubt that the authority to make preference classification decisions rests with 
INS. The language of section 204 cannot be read otherwise. See Castaneda-Gonzalez 
v. INS, 564 F.2d 417,429 (D.C. Cir. 1977). In turn, DOL has the authority to make the 
two determinations listed in section 212(a)(14) [currently found at 2 12(a)(5)(A)(i)]. Id. at 
423. The necessary result of these two grants of authority is that section 212(a)(14) 
determinations are not subject to review by INS absent fraud or willful misrepresentation, 
but all matters relating to preference classification eligibility not expressly delegated to 
DOL remain within INS' authority. 
Given the language of the Act, the totality of the legislative history, and the agencies' 
own interpretations of their duties under the Act, we must conclude that Congress did not 
intend DOL to have primary authority to make any determinations other than the two 
stated in section 212(a)(14). If DOL is to analyze alien qualifications, it is for the 
purpose of "matching" them with those of corresponding United States workers so that it 
will then be "in a position to meet the requirement of the law," namely the section 
2 12(a)(14) determinations. 
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on this decision, the Ninth 
Circuit Court of Appeals, which has jurisdiction over this matter, stated: 
[I]t appears that the DOL is responsible only for determining the availability of suitable 
American workers for a job and the impact of alien employment upon the domestic labor 
market. It does not appear that the DOL7s role extends to determining if the alien is 
qualified for the job for which he seeks sixth preference status. That determination 
appears to be delegated to the INS under section 204(b), 8 U.S.C. tj 1154(b), as one of the 
determinations incident to the INS'S decision whether the alien is entitled to sixth 
preference status. 
K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006, 1008 (9' Cir. 1983). The court relied on an amicus brief from 
the DOL that stated the following: 
The labor certification made by the Secretary of Labor ... pursuant to section 212(a)(14) 
of the ... [Act] ... is binding as to the findings of whether there are able, willing, qualified, 
and available United States workers for the job offered to the alien, and whether 
employment of the alien under the terms set by the employer would adversely affect the 
wages and working conditions of similarly employed United States workers. The labor 
certzjication in no way indicates that the alien offered the certzjied job opportunity is 
qualzjied (or not qualljied) to perform the duties of that job. 
Id. at 1009 (emphasis added). The Ninth Circuit reached a similar decision one year later in Tongatapu 
Woodcraft Hawaii, Ltd. v. Feldman: 
The Department of Labor ("DOL") must certify that insufficient domestic workers are 
available to perform the job and that the alien's performance of the job will not adversely 
affect the wages and working conditions of similarly employed domestic workers. Id. 
3 212(a)(14), 8 U.S.C. 3 1182(a)(14). The INS then makes its own determination of the 
alien's entitlement to sixth preference status. Id. 3 204(b), 8 U.S.C. 3 1154(b). 
 See 
generally K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). 
The INS, therefore, may make a de novo determination of whether the alien is in fact 
qualified to fill the certified job offer. 
736 F. 2d 1305, 1309 (9th Cir. 1984). See also Black Const. Cow. v. I.N.S., 746 F.2d 503 (9th Cir. 
(Guam) 1984) (rejecting argument that once employer's labor certifications had been approved by DOL it 
was error for INS to deny related immigrant petitions for failure to meet preference status requirements). 
We are cognizant of the recent decision in Grace Korean United Methodist Church v. Michael Chertox 
CV 04-1849-PK (D. Ore. November 3, 2005), in which the District Court found that CIS "does not have 
the authority or expertise to impose its strained definition of 'B.A. or equivalent' on that term as set forth 
in the labor certification." In contrast to the broad precedential authority of the case law of a United 
States Circuit Court of Appeals, the AAO is not bound to follow the published decision of a United States 
district court in matters arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). 
Although the reasoning underlying a federal district judge's decision will be given due consideration 
when it is properly before the AAO, the analysis does not have to be followed as a matter of law, 
particularly, as in Grace Korean, where the case is unpublished. Id. at 719. The court in Grace Korean 
makes no attempt to distinguish its holding from the Circuit Court decisions cited above. Instead, as legal 
support for its determination, the court cited to a case holding that the United States Postal Service has no 
expertise or special competence in immigration matters. Grace Korean United Methodist Church at *8 
(citing Tovar v. U.S. Postal Service, 3 F.3d 1271, 1276 (9th Cir. 1993)). On its face, Tovar is easily 
distinguishable from the present matter since CIS, through the authority delegated by the Secretary of 
Homeland Security, is charged by statute with the enforcement of the United States immigration laws. See 
section 103(a) of the Act, 8 U.S.C. fj 1103(a). Moreover, at least two circuits, including the Ninth 
Circuit overseeing the Oregon District Court, have held that CIS does indeed have the authority and 
expertise to evaluate whether the alien is qualified for the job. Those Circuit decisions, and not Grace 
Korean, are binding on this office and will be followed in this matter. 
The key to determining the job qualifications specified in the labor certification is found on Form ETA- 
750 Part A. This section of the application for alien labor certification, "Offer of Employment," describes 
the terms and conditions of the job offered. It is important that the ETA-750 be read as a whole. The 
instructions for the Form ETA 750A, item 14, provide: 
Minimum Education, Training, and Experience Required to Perform the Job Duties. 
Do not duplicate the time requirements. For example, time required in training should 
not also be listed in education or experience. Indicate whether months or years are 
required. 
 Do not include restrictive requirements which are not actual business 
necessities for performance on the job and which would limit consideration of otherwise 
qualified U.S. workers. 
Regarding the minimum level of education and experience required for the proffered position in this 
matter, Part A of the labor certification, as filled in by the petitioner, reflects the following requirements: 
Block 14: 
Education: Four years of college; College degree required: 
"Bachelor* ." 
Major Field of Study: 
 Computer Science or Computer Engineering 
ExpeIlence : 
 Two years in the job offered. 
Block 15 ("Other Special Requirements") includes, regarding college degree required, "* or foreign 
equivalent degree." To determine whether a beneficiary is eligible for a preference immigrant visa, CIS 
must ascertain whether the alien is, in fact, qualified for the certified job. CIS will not accept a degree 
equivalency or an unrelated degree when a labor certification plainly and expressly requires a candidate 
with a specific degree. In evaluating the beneficiary's qualifications, CIS must look to the job offer 
portion of the labor certification to determine the required qualifications for the position. CIS may not 
ignore a term of the labor certification, nor may it impose additional requirements. See Matter of Silver 
Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm. 1986). See also, Madany, 696 F.2d at 1008; 
K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 
661 F.2d 1 (1st Cir. 1981). 
Once again, we are cognizant of the recent holding in Grace Korean, which held that CIS is bound by the 
employer's definition of "bachelor or equivalent." In reaching this decision, the court concluded that the 
employer in that case tailored the job requirements to the employee and that DOL would have considered 
the beneficiary's credentials in evaluating the job requirements listed on the labor certification. As stated 
above, the reasoning underlying a district court's decision will be given due consideration when it is 
properly before the AAO, but the analysis does not have to be followed as a matter of law. K-S-, 20 I&N 
Dec. at 719. In this matter, the court's reasoning cannot be followed because, as will become clear below, 
it is inconsistent with the actual practice at DOL. 
As discussed above, the role of the DOL in the employment-based immigration process is to make two 
determinations: (i) that there are not sufficient U.S. workers who are able, willing, qualified and available 
to do the job in question at the time of application for labor certification and in the place where the alien 
is to perform the job, and (ii) that the employment of such alien will not adversely affect the wages and 
working conditions of similarly employed U.S. workers. Section 2 12(a)(5)(A)(i) of the Act. Beyond this, 
Congress did not intend DOL to have primary authority to make any other determinations in the 
Page 9 
immigrant petition process. Madany, 696 F.2d at 1013. As discussed above, CIS, not DOL, has final 
authority with regard to determining an alien's qualifications for an immigrant preference status. K.R.K 
Iwine, 699 F.2d at 1009 FN5 (citing Madanv, 696 F.2d at 101 1-13). This authority encompasses the 
evaluation of the alien's credentials in relation to the minimum requirements for the job, even though a 
labor certification has been issued by DOL. Id. 
Additionally, where the job requirements in a labor certification are not otherwise unambiguously 
prescribed, e.g., by professional regulation, CIS must examine "the language of the labor certification job 
requirements" in order to determine what the petition beneficiary must demonstrate to be found qualified 
for the position. Madany, 696 F.2d at 1015. The only rational manner by which CIS can be expected to 
interpret the meaning of terms used to describe the requirements of a job in a labor certification is to 
"examine the certified job offer exactly as it is completed by the prospective employer." Rosedale Linden 
Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984) (emphasis added). CIS's interpretation of 
the job's requirements, as stated on the labor certification must involve "reading and applying the plain 
language of the [labor certification application form]." Id. at 834 (emphasis added). CIS cannot and 
should not reasonably be expected to look beyond the plain language of the labor certification that DOL 
has formally issued or otherwise attempt to divine the employer's intentions through some sort of reverse- 
engineering of the labor certification. 
CIS's authority, derived from the Act, regulations, and Circuit Court of Appeals precedent, to make a de 
novo determination of whether the alien is in fact qualified to fill the certified job offer, in combination 
with the judicial injunction to CIS to interpret the labor certification according to its exact and plain 
language, compels the conclusion, which we accept, that the issuance of a labor certification does not 
bind CIS to accept the employer's, or even the Department of Labor's definition of the amount and kind 
of experience that should be considered the equivalent of a college degree. 
In any event, however, we are satisfied that DOL's interpretation of "B.A. or equivalent" matches our 
own. The regulation at 20 C.F.R. tj 656.21(b)(6) requires the employer to "clearly document . . . that all 
U.S. workers who applied for the position were rejected for lawful job related reasons." BALCA has held 
that an employer cannot simply reject a U.S. worker who meets the minimum requirements specified on 
the Form ETA-750. See American CafL, 1990 INA 26 (BALCA 1991), Fritz Garage, 1988 INA 98 
(BALCA 1988), and Vanguard Jewelry Corp. 1988 INA 273 (BALCA 1988). 
 Thus, the court's 
suggestion in Grace Korean that the employer tailored the job requirements to the alien instead of the job 
offered actually implies that the recruitment was unlawful. If, in fact, DOL is looking at whether the job 
requirements are unduly restrictive and whether U.S. applicants met the job requirements on the Form 
ETA 750, instead of whether the alien meets them, it becomes immediately relevant whether DOL 
considers "B.A. or equivalent" to require a U.S. bachelor's degree or a foreign degree that is equivalent to 
a U.S. bachelor's degree. 
In reaching the conclusion that DOL's interpretation of "B.A. or equivalent" matches our own, we rely on 
the reasoning articulated in Hong Video Technology, 1998 INA 202, 2001 WL 1055 170 (BALCA 2001). 
That case involved a labor certification that required a "B.S. or equivalent." The Certifying Officer 
questioned this requirement as the correct minimum for the job as the alien did not possess a bachelor of 
science degree. In rebuttal, the employer's attorney asserted that the beneficiary had the equivalent of a 
bachelor of science degree as demonstrated through a combination of work experience and formal 
education. The Certifying Officer concluded that "a combination of education and experience to meet 
educational requirements is unacceptable as it is unfavorable to U.S. workers." BALCA concluded: 
We have held in Francis Kellogg, et als., 94-INA-465, 94 INA-544, 95-INA-68 (Feb. 2, 
1998) (en banc) that where, as here, the alien does not meet the primary job requirements, 
but only potentially qualifies for the job because the employer has chosen to list 
alternative job requirements, the employer's alternative requirements are unlawfully 
tailored to the alien's qualifications, in violation of [20 C.F.R.] 9 656.21(b)(5), unless the 
employer has indicated that applicants with any suitable combination of education, 
training or experience are acceptable. Therefore, the employer's alternative requirements 
are unlawfully tailored to the alien's qualifications, in violation of [20 C.F.R.] 4 
65[6].2 1 (b)(5). 
In as much as Employer's stated minimum requirement was a "B.S. or equivalent" degree 
in Electronic Technology or Education Technology and the Alien did not meet that 
requirement, labor certification was properly denied. 
Hong Video Technology, 2001 WL 1055 170, at 4. 
Significantly, when DOL raises the issue of the alien's qualifications in Honn Video, it is to question 
whether the Form ETA-750 properly represents the job qualifications for the position offered. DOL is not 
reaching a decision as to whether the alien is qualified for the job specified on the Form ETA 750, a 
determination reserved to CIS for the reasons discussed above. Thus, DOL's certification of an 
application for labor certification does not bind us in determinations of whether the alien is qualified for 
the job specified. As quoted above, DOL has conceded as much in an amicus brief filed with a federal 
court. If we were to accept the employer's definition of "or equivalent," instead of the definition DOL 
uses, we would allow the employer to "unlawfully7' tailor the job requirements to the alien's credentials 
after DOL has already made a determination on this issue based on its own definitions. We would also 
undermine the labor certification process. Specifically, the employer could have lawfully excluded a U.S. 
applicant that possesses experience and education "equivalent" to a degree at the recruitment stage as 
represented to DOL. 
While we do not lightly reject the reasoning of a District Court, it remains that the District Court's 
unpublished decision is not binding on us, runs counter to Circuit Court decisions that are binding on us, 
and is inconsistent with the actual labor certification process before DOL. Thus, we will maintain our 
consistent policy in this area of interpreting "or equivalent" as meaning a foreign equivalent degree. We 
note that this interpretation is consistent with our own regulations, which define a degree as a degree or a 
foreign equivalent degree. 8 C.F.R. 9 204.5(1)(2). 
In order to be eligible for classification as a professional, the beneficiary must have a completed four 
years of college and possess a baccalaureate degree or a foreign equivalent degree. 8 C.F.R. 
3 204.5(1)(2). While the beneficiary need not possess a degree to be classified as a skilled worker, the 
beneficiary must meet the requirements of the labor certification. 8 C.F.R. tj 204.5(1)(3)(B). The 
beneficiary possesses a foreign three-year bachelor's degree in physics from the University of Bombay 
and an honours diploma in systems management from the National Institute of Information Technology in 
Bombay, India (NIIT). The director concluded that the beneficiary did not have the requisite U.S. 
baccalaureate degree or foreign equivalent degree. 
The AAO accessed NIIT's website to determine what type of educational services it provides. 
 NIIT 
collaborates with India's government educational system from landergarten through post-graduate levels. No 
admission requirements are posted on the website but it does reflect that it provides online courses to colleges 
and develops college graduates' technical skills to prime them for better employment positions. Thus, it 
appears that NIIT does not require a college degree in order to admit a student. There is no evidence that the 
beneficiary's admission to NIIT was predicated upon the completion of a bachelor's degree program. 
Counsel has submitted three evaluations that all conclude that the beneficiary's degree and NIIT diploma 
are equivalent to a U.S. baccalaureate degree. 
First, a three-year bachelor's degree will not be considered to be a "foreign equivalent degree" to a United 
States baccalaureate degree. Nor will three years of education satisfy the four-year requirement set forth 
on the ETA-750. A United States baccalaureate degree is generally found to require four years of 
education. Matter of Shah, 17 I&N Dec. 244 (Reg. Comm. 1977). If supported by a proper credentials 
evaluation, a four-year baccalaureate degree from India could reasonably satisfy the four-year 
requirement and also be deemed to be a "foreign equivalent degree" to a United States baccalaureate 
degree. However, in Matter of Shah, the Regional Commissioner declined to consider a three-year 
Bachelor of Science degree from India as the equivalent of a United States baccalaureate degree because 
the degree did not require four years of study. Matter of Shah, 17 I&N Dec. at 245. Based on the same 
reasoning, the AAO will not consider the beneficiary's three-year Bachelor of Science degree from the 
University of Bombay to meet the four-years of college requirement or to be the required "foreign 
equivalent degree" to a United States baccalaureate degree for purposes of this preference visa petition. 
Regarding the NIIT honours diploma, CIS may, in its discretion, use as advisory opinions statements 
submitted as expert testimony. However, where an opinion is not in accord with other information or is 
in any way questionable, CIS is not required to accept or may give less weight to that evidence. Matter of 
Caron International, 19 I&N Dec. 791 (Comm. 1988); Matter of Sea, Inc., 19 I&N Dec. 8 17 (Comm. 
1988). Neither the statute nor the conforming regulations allow for alternatives to the requirement of the 
specific degree required on the Form ETA-750, whether the equivalency is based on work experience or a 
combination of lesser educational degrees and certifications, professional memberships or other training. 
As noted above, a three-year degree is not considered by U.S. universities to be equivalent to a U.S. 
baccalaureate for purposes of admission into graduate schools because the three-year degree is subject 
specific. We fail to see how adding additional subject specific coursework or training resolves that issue. 
Significantly, the decision in Matter of Shah, 17 I&N Dec. at 244-245, found that the alien's degree was 
not equivalent to a U.S. baccalaureate even though the alien had been admitted into a Master's program in 
the United States. 
Finally, counsel also submits copies of two letters dated January 7, 2003 and July 23, 2003, respectively, 
from Efren Hernandez III of the INS Office of Adjudications to counsel in other cases, expressing his opinion 
about the possible means to satisfy the requirement of a 
 f a U.S. advanced degree for 
purposes of 8 C.F.R. 204.50<)(2). Within the July 2003 
 states that he believes that the 
combination of a post-graduate diploma and a 
 may be considered to be the 
equivalent of a U.S. bachelor's degree. 
At the outset, it is noted that private discussions and correspondence solicited to obtain advice from CIS are 
not binding on the AAO or other CIS adjudicators and do not have the 
 tter of lzummi, 22 
I&N 169, 196-197 (Comm. 1968); see also, Memorandum from Acting Associate 
Commissioner, Office of Programs, U.S Immigration & Naturalization Service, Significance of Letters 
Drafted By the Ofice ofAdjudications (December 7,2000). 
Page 12 
Moreover, the regulation at 8 C.F.R. 9 204.5(1)(3)(ii)(C) is clear in allowing only for the equivalency of one 
foreign degree to a United States baccalaureate, not a combination of degrees, diploma 
experience. Additionally, although 8 C.F.R. 9 204.5(k)(2), as referenced by counsel and i 
correspondence, permits a certain combination of progressive work experience and a bachelor's degree to be 
considered the equivalent of an advanced degree, there is no comparable provision to substitute a 
combination of degrees, work experience, or certificates which, when taken together, equals the same amount 
of coursework required for a U.S. baccalaureate degree. We do not find the determination of the credentials 
evaluation probative in this matter. It is further noted that a bachelor's degree is generally found to require 
four years of education. Matter of Shah, 17 I&N Dec. 244 (Comrn. 1977). In that case, the Regional 
Commissioner declined to consider a three-year Bachelor of Science degree from India as the equivalent of a 
United States baccalaureate degree because the degree did not require four years of study. Matter of Shah, at 
245. 
Therefore, based on the evidence submitted, we concur with the director that the petitioner has not established 
that the beneficiary possesses the equivalent of a United States bachelor's degree as required by the terms of 
the labor certification. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 
1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.